Of the Eighth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1224

UNITED STATES OF AMERICA,

Appellee,

v.

ANTHONY HOSEA BURNETT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul Barbadoro, U.S. District Judge]

Before

 Boudin, Hansen, and Lipez, *

Circuit Judges.

Royston H. Delaney, with whom Robert M. Thomas, Jr. was on

brief, for appellant.

Aixa Maldonado-Quiñones, with whom Thomas P. Colantuono,

United States Attorney, was on brief, for appellee.

September 1, 2009
- 2 -

HANSEN, Circuit Judge. Following a jury trial, Anthony

Burnett was convicted of conspiring to distribute 50 or more grams

of cocaine base (crack cocaine), 21 U.S.C. §§ 841(a)(1) & 846

(2006), possessing with the intent to distribute 50 or more grams

of crack, 21 U.S.C. § 841(a)(1), possessing a firearm in

furtherance of a drug trafficking crime, 18 U.S.C. § 924(c), use of

a firearm in relation to a drug trafficking crime, 18 U.S.C.

§ 924(c), and being a felon in possession of a firearm, 18 U.S.C.

§ 922(g)(1). Based on Burnett's stipulation to two prior felony

drug offenses, Burnett received a mandatory life sentence, 21

U.S.C. §§ 841(b), and concurrent 60-month sentences on two of the

gun charges, 18 U.S.C. § 924(c), to be served consecutively to the

life sentence. On appeal, Burnett seeks a new trial based on two

evidentiary rulings, one in which the district court allowed a

Government witness to testify about seeing Burnett in possession of

a small baggy containing a white substance without establishing

that the substance was cocaine, and one in which the district court

allowed another witness to testify about death threats Burnett made

against the witness and her daughter. We affirm Burnett's

convictions.

I.

Richard "Dickey" Post went into hiding because he owed

money to Burnett for drugs. Burnett and two other men, Juan

Feliciano and Quinta Parker, went looking for Post at Post's
- 3 -

apartment and found Post's girlfriend, Carrie Davis, and Post's

sister, Cynthia Strong, removing Post's items from his apartment.

Burnett confronted the two women about Post's whereabouts, pointed

at Ms. Davis and stated "yo bitch," and exposed a handgun concealed

in his waistband. Davis became upset, and Ms. Strong told the men

to leave. Strong followed the men down the road, took down the

license plate number of the truck the men left in, and called the

police.

An alert went out to local police departments, and an

officer with the Dover Police Department located the truck in the

parking lot of the Dover Comfort Inn. The night clerk, Anne Marie

Benson, directed two officers to the room to which the truck was

registered. The officers knocked on the door to the room, noticing

a strong odor of freshly burnt marijuana. Burnett finally opened

the door nearly ten minutes later. Burnett and the three other

occupants of the room, Feliciano, Parker, and Kimberley Holland,

were detained outside the room while the officers applied for a

search warrant. The officers subsequently recovered a safe from

the room, which contained a Cobra .32 caliber handgun, $3,000 in

cash, and more than 500 grams of crack cocaine packaged in 281

plastic bags. Parker's fingerprints were the only ones found on

the safe. The officers also recovered a black leather jacket

containing $2,750 in cash from the room. Burnett, Feliciano,

Parker, and Holland were arrested following the search.
- 4 -

While Burnett was detained during the search of the hotel

room, he asked Joanne Rousseau, his girlfriend at the time, who

arrived at the hotel after hearing over police scanners that the

police were looking for Burnett, to tell the police officers that

he had been with her earlier that evening. He also asked her to

get rid of "those things" in the trunk of his car. The following

day, Rousseau and three other individuals took a safe out of the

trunk of Burnett's car, which was still in the Comfort Inn parking

lot. The safe contained two guns, one that Burnett had traded for

drugs and one that Rousseau had given to Burnett as a gift.

Burnett was indicted on various drug and firearm charges

and proceeded to trial. The Government introduced the evidence

seized from the hotel room. Ms. Holland, who testified under a

letter of use immunity, linked the drugs found in the room to

Burnett when she testified that Burnett was packaging the cocaine

in small baggies when the officers knocked on the hotel door and he

grabbed the baggies and a gun and gave them to Parker to conceal in

the safe before opening the door for the officers. Several other

witnesses testified about their drug dealings with Burnett in the

past, including Ms. Rousseau. Rousseau also testified that Burnett

had asked her to make up an alibi and to get rid of "those things"

in the trunk of Burnett's car, and she identified the black jacket

found in the hotel room containing $2,750 in cash as belonging to

Burnett. Ms. Benson, the hotel clerk, testified that Burnett was
- 5 -

a regular at the hotel, always paid with cash, and that she once

saw him drop a small baggy containing a white substance as he was

exiting the elevator in the hotel.

II.

Burnett first challenges the testimony offered by Ms.

Benson, the clerk at the hotel where the police found Burnett in a

room with half a kilo of crack cocaine, in which she testified

about an incident when she saw a little baggy containing a "white

substance" fall out of Burnett's pocket when he stepped out of the

elevator. Rather than tell Burnett he lost something, Benson

picked up the baggy and then flushed it down a toilet. The

district court sustained Burnett's objection when the witness was

asked what she thought was in the baggy, but the court overruled

his objection when Benson was asked if she was suspicious about

what she picked up, to which she responded, "Yes." On crossexamination, Burnett's counsel questioned why she did not tell

Burnett he had dropped something, and Benson responded, "I knew it

was drugs." The district court overruled Burnett's objection to

her response because his counsel's questioning had invited the

response. 

Burnett claims that the district court abused its

discretion, see United States v. Mangual-Santiago, 562 F.3d 411,

425 (1st Cir. 2009) (standard of review), petition for cert. filed,

__ U.S.L.W. ___, (U.S. July 27, 2009) (No. 09-5608), when it
- 6 -

admitted Benson's testimony about the baggy, arguing the evidence

was irrelevant under Federal Rules of Evidence 401 and 402. He

claims that the evidence was irrelevant because no one ever

testified that the substance in the baggy was in fact cocaine.

Burnett complains that the evidence left the jury to speculate that

this witness, who according to Burnett was the only "respectable

lay witness" (meaning not a government agent or a drug dealer/user

turned witness), saw Burnett in actual possession of cocaine even

though the substance was never identified as cocaine.

The Rules of Evidence define relevant evidence as

"evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence."

Fed. R. Evid. 401 (emphasis added). Each specific item of evidence

offered need not "be sufficient to prove the case standing by

itself" before it is admissible. United States v. Vigneau, 187

F.3d 82, 87 (1st Cir. 1999) (holding that evidence of calls made

from defendant's residence to coconspirators was admissible even

though there was no evidence that defendant was the one who made

the calls). Rather, it is enough that the piece of evidence has

some bearing on a matter of consequence to the case. Juries are

asked every day to consider circumstantial evidence as they

determine whether a defendant has committed a crime.
- 7 -

The fact that the substance in the baggy about which the

hotel employee testified was not proven to be cocaine may diminish

the weight a fact finder will give the evidence, but it did not

make the evidence completely without value. This evidence tended

to make the existence of the fact that Burnett was involved in a

conspiracy to distribute cocaine more probable than if the evidence

had not been admitted. Four people were found in a hotel room with

over 500 grams of crack cocaine, which was packaged in small

baggies and locked in a safe. The prosecution had to establish not

only that Burnett was in the room, but that he was involved in the

conspiracy to possess and distribute the cocaine. The fact that

Burnett was seen in the same hotel with a small baggy containing a

white substance, even though that substance was not identified,

provides circumstantial evidence which a jury could find

corroborated Holland's testimony that Burnett was the one packaging

the crack cocaine. See United States v. Searing, 984 F.2d 960,

965-66 (8th Cir. 1993) ("[Defendant]'s bagging of a substance which

could have been narcotics was indeed relevant to his knowledge and

participation in such an enterprise. The neighbor's inability to

definitely identify the substance . . . went to the weight and

credibility of her testimony, not its relevance.").

III.

Burnett also brings a Rule 403 challenge to the testimony

offered by Ms. Rousseau, a prosecution witness and Burnett's former
- 8 -

girlfriend, about death threats that Burnett made against her and

her daughter. See Fed. R. Evid. 403 (excluding relevant evidence

if its probative value is substantially outweighed by unfair

prejudice). Because Burnett did not object to this testimony at

trial on the basis of its prejudicial effect, our review is for

plain error. See United States v. Shoup, 476 F.3d 38, 42 (1st Cir.

2007); Fed. R. Crim. P. 52(b). We may reverse only if: "(i) there

was error; (ii) the error was obvious; and (iii) the error affected

[Burnett]'s substantial rights by altering the outcome of the

trial." Shoup, 476 F.3d at 42. Even then, we are not required to

correct a plain error, and we will exercise our discretion only as

necessary to prevent a miscarriage of justice. See United States

v. Olano, 507 U.S. 725, 735-36 (1993).

Before Rousseau was allowed to testify about

communications she had had with Burnett prior to the trial, the

district court conducted voir dire with her outside of the presence

of the jury. Rousseau explained to the court that she had received

written and verbal communications from Burnett and that she did not

decide to cooperate with the Government in Burnett's case until

after he made the threat against her daughter. Burnett's only

objections to the proffered testimony were a Rule 16 discovery

challenge, which was overruled, and a concern about the possible

reference to Burnett's incarceration. At Burnett's request, the

district court instructed the jury not to draw any inferences about
- 9 -

Burnett's guilt from the fact that he was incarcerated at the time

he made the statements to Rousseau. 

Rousseau then testified in front of the jury that prior

to Burnett's trial, she was being detained at the same correctional

facility as Burnett. During that time Burnett sent Rousseau a note

that stated, "only you can prevent forest fires, Joe [sic]. You

hold the match." At the time, Rousseau had refused to cooperate

with the Government in Burnett's case. A few months later, while

Rousseau was still not cooperating with the Government, Burnett

screamed at her that he "will have my people come up, take you and

your daughter out." Rousseau testified that "[a]t that point,

that's when I contacted my lawyer and told him I would cooperate."

While evidence that a defendant threatened a witness

prior to trial cannot be introduced to show the defendant's

propensity to commit bad acts, see Fed. R. Evid. 404, such evidence

can be introduced for other purposes, such as demonstrating

consciousness of guilt by showing the lengths to which a defendant

will go to keep damaging testimony out of his trial, see United

States v. Rosa, 705 F.2d 1375, 1377 (1st Cir. 1983) (per curiam);

United States v. Monahan, 633 F.2d 984, 985 (1st Cir. 1980) (per

curiam). Such evidence can be highly prejudicial, however, and it

"should not be admitted if its probative value is 'substantially

outweighed' by the danger of undue prejudice." See Rosa, 705 F.2d

at 1377 (quoting Fed. R. Evid. 403).
- 10 -

Burnett argues that the district court did not weigh the

probative value of the evidence against its unfair prejudice as

required by Rules 403 and 404. The reason the district court did

not make explicit findings concerning how the factors balanced

against each other was because Burnett made no objection to the

evidence on the basis of unfair prejudice. Nonetheless, the

district court did voir dire the witness outside of the presence of

the jury before allowing her to testify about the threats. We

interpret the district court's decision to allow Rousseau to

testify about the threat as an implicit finding by the district

court that the probative value of the evidence was not

substantially outweighed by any unfair prejudice. See id. at 1378

(The district court's "invitation to Skelton's attorney to request

a limiting instruction if desired suggests that he had come to the

conclusion that the danger of unfair prejudice did not outweigh the

probative value of the evidence. The judge had no need to be more

explicit because . . . defense counsel did not object to the

evidence on the basis of unfair prejudice.").

While death threats against a witness, particularly

threats against a witness's children, can be inflammatory, any

evidence of such threats is not so prejudicial per se that the

unfair prejudice from the threat always substantially outweighs its

probative value. We must also look at whether the jury heard

graphic details of how the threat would be carried out, see United
- 11 -

States v. Gonsalves, 668 F.2d 73, 75 (1st Cir.) (distinguishing

cases involving a detailed description of an attempt to murder a

witness), cert. denied, 456 U.S. 909 (1982), whether the threat was

made as an emotional or impulsive reaction, see Rosa, 705 F.2d at

1378 (noting that impulsive threats are less inflammatory than

calculated, advanced plans to murder a witness), and how important

the evidence about the threat was to the Government's case, cf.

United States v. Pina, 844 F.2d 1, 9 (1st Cir. 1988) ("[A] threat

made after a witness has already testified does not demonstrate

that the defendant is willing to take action to prevent the

introduction of relevant evidence . . . [and] any probative value

of the evidence is outweighed by its inflammatory potential.").

While the Government's need for the evidence is one factor we

consider, we decline Burnett's suggestion that evidence of death

threats against witnesses should be admissible only when there is

a "clear need for the prosecution to use such evidence." United

States v. Check, 582 F.2d 668, 685 (2d Cir. 1978).

We accept that Burnett's threat was inflammatory because

it was aimed at Rousseau's daughter. Nonetheless, the threat did

not convey graphic details or suggest a specific, premeditated plan

to carry out the threat. Nor did it unnecessarily paint Burnett as

an "unusually violent person or as a cold-blooded killer."

Gonsalves, 668 F.2d at 75. Further, the threat can fairly be read

as an impulsive reaction, shouted through a closed jailhouse door.
- 12 -

Finally, Ms. Rousseau's testimony about the threat was important to

the Government's case to show that Burnett was trying to keep other

evidence she knew about out of his trial–evidence that only she had

to offer. It also helped to establish Rousseau's motive for

testifying against Burnett. Rousseau's credibility was critical to

the Government as Rousseau was the witness who identified Burnett's

jacket found in the hotel room and who identified the guns taken

from Burnett's car as belonging to Burnett. As in Rosa, the

Government's case rested largely on Burnett's coconspirator's

testimony linking Burnett to the drugs found in the safe. The

factors that the district court would have explicitly considered

had Burnett made a Rule 403 objection do not so clearly weigh on

the side of unfair prejudice that we can say that the district

court plainly erred in allowing Rousseau to testify about the

threat. See Shoup, 476 F.3d at 43 (concluding that the district

court's admission of a 911 tape was not plain error where there was

no bright line test precluding the evidence and the court

considered the proper factors in reaching its conclusion that the

tape met the excited utterance hearsay exception). 

IV.

We have considered the cumulative effect of the claimed

evidentiary rulings, see United States v. Villarman-Oviedo, 325

F.3d 1, 18 (1st Cir. 2003), and conclude that Burnett received a

fair trial. We have also considered the arguments in Burnett's pro
- 13 -

se brief, arguments we find to be meritless for both procedural and

substantive reasons. The district court's evidentiary rulings are

upheld, and Burnett's convictions are affirmed.

Affirmed.